Gunite Corporation

National Labor Relations Board - Administrative Judge Opinions

Aug 20, 2009

33-CA-015554 (N.L.R.B. Aug. 20, 2009)

JD(ATL)–20–09
Rockford, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
GUNITE CORPORATION
and
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE, AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA
and
LOCAL 718, INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE, AND
AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA
(Party to the Contract)
Case 33–CA–15554
Debra L. Stefanik, Esq., for the General Counsel.
Charles L. Chester and Eric O. Sweeney (on brief),
Esqs., for the Respondent.
Judiann Chartier and Stanley Eisenstein, Esqs., for
the Charging Party.
DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. This case was tried in Peoria, Illinois,
on June 9 and 10, 2009, pursuant to an amended complaint that issued on March 25, 2009.1
The complaint alleges that the Respondent, in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, illegally locked out its employees on March 12; in violation of Section
8(a)(1) and (2), of the Act, signed a collective-bargaining agreement with Local 718
notwithstanding that Local 718 was not the exclusive collective bargaining representative of the
employees in the appropriate unit; and, in violation of Section 8(a)(1) and (5) the Act, failed and
refused to recognize and bargain with the joint exclusive collective bargaining representative of
the employees in the appropriate unit. The Respondent’s answer denies any violation of the Act.
I find that the Respondent violated the Act as alleged in the complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by all parties, I make the following

1 All dates are in 2008 unless otherwise indicated. The charge was filed on March 10 and was
amended on April 4.
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Findings of Fact
I. Jurisdiction
The Respondent, Gunite Corporation, the Company, a corporation, is engaged in the
manufacture and sale of iron castings at its facilities in Rockford, Illinois, from which it annually
sells and ships goods and materials valued in excess of $50,000 directly to points outside the
State of Illinois. The Respondent admits, and I find and conclude, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that International Union, United
Automobile, Aerospace, and Agricultural Implement Workers of America, the International, and
Local 718, International Union, United Automobile, Aerospace, and Agricultural Implement
Workers of America, Local 718, hereinafter jointly referred to as the Union, are labor
organizations within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
The International was certified as the exclusive collective bargaining representative of
the employees in the following appropriate unit in 1949:
All production and maintenance employees employed by the Employer at its Rockford,
Illinois, facility; EXCLUDING production clerks, shipping clerks, security guards, office
and clerical employees in the main office, engineers, drafting personnel, the nurses,
time-study, the research metallurgist, timekeepers, the production manager, the
superintendents, supervisors, assistant supervisors and any and all other supervisory
employees having authority to hire. transfer, suspend, lay off, recall, promote, discharge,
assign, reward or discipline other employees or otherwise effect changes in the status of
employees, or responsibly to direct them, or effectively recommend such action.
Shortly thereafter, Local Union No. 718 was chartered. The initial collective-bargaining
agreement, effective December 22, 1949, and all collective-bargaining agreements thereafter,
including the collective-bargaining agreement that was in effect from May 1, 2005, through
November 17, 2007, recognized the International “and its Local Union No. 718,” as the
collective bargaining representative of the employees in the foregoing appropriate unit.2 The
signature pages of all collective-bargaining agreements from 1949 through the agreement that
expired on April 30, 2005, had separate signature blocks for the International Union and Local
Union No. 718. Although the 2005 agreement did not contain separate signature blocks, the
signature page reflected that the contract was between the International and “its Local 718.”
In early 2005, the Company was acquired by Accuride Corporation. At the negotiations
for the successor contract to the agreement that was to expire on April 30, 2005, the
spokesperson for the Company was Attorney Fred Minor. The spokesperson for the Union was
International Representative George Campa. The Company proposed, and the Union agreed, to
place several terms and conditions of employment, including health care benefits, in a separate

2 The name of the International changed from United Automobile, Aircraft, and Agricultural
Implement Workers of America to United Automobile, Aerospace, and Agricultural Implement
Workers of America as reflected in the March 1, 1965 collective-bargaining agreement.
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document titled Memorandum of Settlement. Uncontradicted testimony establishes that those
terms and conditions of employment are not subject to the contractual grievance procedure. The
collective-bargaining agreement, the provisions of which are subject to the grievance procedure,
is attached to the Memorandum of Settlement and identified as Exhibit 1. The initial paragraph
of the Memorandum of Settlement states that the Memorandum “sets forth the items agreed
upon by … [the Company] and the International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America, Local No. 718,“ rather than the International Union,
United Automobile, Aerospace, and Agricultural Implement Workers of America and its Local
Union No. 718. The collective-bargaining agreement continued to track the language of all
previous agreements, stating that the contract was between the Company and the “International
Union, United Automobile, Aerospace, and Agricultural Implement Workers of America and its
Local Union No. 718.” [Emphasis added.] Unlike all prior agreements, there were not separate
signature blocks for the International and Local 718. The signature block for the Union states,
“International Union, United Automobile, Aerospace, and Agricultural Implement Workers of
America, UAW and its Local 718.”
This proceeding relates to alleged violations arising out of negotiations for a successor
collective-bargaining agreement that began in 2007, and culminated on March 14, 2008, when
the Company signed a collective-bargaining agreement that recognized only Local 718.
B. Facts
Negotiations for a successor agreement to the contract that was to expire on November
17, 2007, began on October 10, 2007. At these negotiations, the Company spokesperson was
Attorney Nathan (Nate) Niemuth who was accompanied by Human Resources Manager Susan
Lundstrom. International Representative Roger Anclam was spokesperson for the International
and its Local 718. He was accompanied by Local 718 President Rick Kardell and a bargaining
committee of other unit employees. At that initial bargaining session the parties discussed
various preliminary matters which included eligibility to vote upon ratification of any tentative
agreement. Anclam noted that the committee had the authority to make a tentative agreement
subject to ratification. The Company’s minutes reflect that International Representative Anclam
also placed the Company on notice of the necessity for approval by two levels of the
International, stating that he did not “anticipate any problems with approval from the regional
director [of the International] or the International Union.”
On October 10, 2007, the Company presented a proposed Memorandum of Settlement,
similar to the Memorandum to which the Union had agreed in 2005, which would not be subject
to the grievance procedure. The first paragraph of the Memorandum of Settlement, as it did in
the 2005 agreement, states that the Memorandum of Settlement is between the Company and
the International’s Local 718. There is no evidence that the negotiators for the Union had, in
2005, noticed that the 2005 Memorandum of Settlement identified the parties as the Company
and only Local 718, rather that the International and its Local Union No. 718. Nor is there any
evidence that the negotiators for the Union, in October 2007, noticed that the foregoing
identification was repeated in the proposed 2007 Memorandum of Settlement.
On the afternoon of October 10, 2007, the Company presented its proposed collective-
bargaining agreement. The first paragraph of the collective-bargaining agreement in 2005, as
had all agreements since 1949, identified the parties to the agreement as the International “and
its Local Union No. 718.” [Emphasis added.] This was changed in the Company’s 2007
proposal. The first paragraph of the proposed collective-bargaining agreement alters the
recognition language of the former collective-bargaining agreement and states that the
agreement is between the Company and “International Union, United Automobile, Aerospace,
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and Agricultural Implement Workers of America, Local No. 718.”
Neither the proposed Memorandum of Settlement nor the proposed collective-bargaining
agreement showed alterations from the 2005 documents by lining through deletions and
underlining additions, or otherwise identifying changes.
There is no evidence that the negotiators for the Union noticed the rewording of the
recognition clause at the time the Company submitted its proposed collective-bargaining
agreement. Although on December 31, 2007, the International filed a charge, later withdrawn,
claiming inter alia, that the Company was insisting upon permissive subjects of bargaining. The
charge did not specify the permissive subjects or cite the change in the recognition language.
The substantive provisions of the collective-bargaining agreement proposed in October
2007 were unacceptable to the Union. The prior collective-bargaining agreement expired on
November 17, 2007. The Company locked out the employees on November 18, 2007. The
legitimacy of the lockout at that time is not in issue. Over the next several months, the parties
met on various occasions to negotiate a successor collective-bargaining agreement.
On February 18, Niemuth returned a telephone call from Local 718 President Kardell
who questioned whether there was a proposal that was in a “votable state.” When Niemuth
replied that there was not, Kardell questioned him regarding availability for further meetings,
stating a need to take something “to the membership.” Niemuth complimented Kardell for
“taking some leadership.” Kardell asserted that he was “the one calling the shots from this time
forward.” Niemuth immediately stated that “[e]ven though you are not the chief spokesperson”
he wanted to confirm that “Roger’s [Amclam’s] goal” was “a ratified new contract.” Kardell stated
that he would contact Anclam regarding his availability and then contact Lundstrom. Niemuth
testified that following that conversation, and during the bargaining sessions in March, “[w]e
decided” that Anclam was not the chief spokesperson for the Union.” The “we” to whom he
referred was never explained. Niemuth never informed Kardell that “[w]e decided” that Anclam
had relinquished his role as chief spokesperson. He did not ever assert to Anclam that he no
longer spoke as chief spokesperson.
It is undisputed, and Niemuth acknowledged, that the parties “could change or withdraw
a proposal up until the time agreement was reached.”
International Representative Anclam protested the alteration of the recognition clause in
the proposed agreement at the bargaining session of March 5. The record does not establish
when the International realized that the recognition clause had been altered. Regardless of
when the alteration was discovered, minutes of the March 5 bargaining session reflect that
Anclam pointed out to Niemuth that, “[s]ince the first agreement between Gunite … it [the Union]
has been referred to as International and its Local Union 718 ….” He explained that, typically,
the International is certified and that thereafter a local union is formed and that the collective-
bargaining agreement is “a three party agreement—the International, the Company, and its [the
International’s] Local.” Regarding the removal of the “and its” from the recognition clause of
collective-bargaining agreement, Anclam stated that “[we] look at that as an exclusion of the
International.” Anclam noted that, due to the lockout, he knew that “some folks that are hungry
… are probably going to vote for anything.”
Niemuth responded that there was no “and its” language in the 2005 Memorandum of
Settlement or on the cover of the 2005 collective-bargaining agreement, that the first place that
“and its” showed up was the “first paragraph of the first page” of the collective-bargaining
agreement. He explained that “we attempted … to refer to the Union as it is referred to in the
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majority of places in the 2005 documents.” He did not agree to reinsert the “and its” language.
He noted that there was no joint certification and stated that if “the Union party” wanted the
agreement to be between the Company and the International with Local 718 administering the
collective-bargaining agreement that the Company “didn’t have any issue with that.”
The following day, March 6, which was the final bargaining session, Anclam again stated
that the Union took exception to the fact that the Company “had deleted the recognition of the
International Union by leaving the and its out.” [Emphasis added.] He stated that “in our opinion
[that is] improper.” Niemuth again referred to the initial certification of the International and again
stated that the Company was willing to make the collective-bargaining agreement between the
Company and the International.” Anclam stated, “We won’t decide it here.”
On March 7, Anclam wrote Niemuth and called his attention to the provision of the
International’s Constitution requiring approval of collective-bargaining agreements by the
Regional Director and International, approvals to which he had referred at the initial bargaining
session on October 10, 2007, when Anclam had anticipated “no problem.” The letter sets out
the pertinent language in Article 19, Section 3:
Should the proposed contract or supplement be approved by a majority vote of the Local
Union or unit members so participating, it shall be referred to the Regional Director for
his/her recommendation to the International Executive Board for its approval or rejection.
In case the Regional Board Member recommends approval, the contract becomes
operative until the final action is taken by the International Executive Board.
Anclam attempted to personally deliver his letter to the plant but was denied access due
to the continuing lockout. He also sent the letter by email, and Niemuth admits receiving it on
March 8, prior to the ratification meeting. Niemuth made no attempt to contract Anclam.
Despite Anclam’s undisputed comments at the October 10, 2007, bargaining session
regarding two levels of approval at the International, the Company argues that March 8 “was the
first time the Company became aware of the condition” of approval by the Regional Director and
Executive Board of the International. The short answer to that argument is that the Company did
not listen well or review the minutes of the October 10, 2007, meeting.
On Sunday, March 9, the members voted upon the Memorandum of Settlement and
collective-bargaining agreement as proposed by the Company on March 6. International
Representative Anclam was present and informed the members that the International would not
approve the agreement. Nevertheless the members voted to accept the Memorandum and
collective-bargaining agreement. Local 718 President Kardell called both Niemuth and
Lundstrom and informed them of the outcome of the vote. Niemuth was unavailable, and he left
a voice mail message for him.
Thereafter, Lundstrom called Kardell confirming the date of signing for Friday, March 14.
The Company set up drug testing and meetings regarding the return to work, arrangements that
Kardell communicated to the locked out employees.
On March 11, at a special meeting of the International Executive Board, the International
adopted a resolution which, citing inter alia, the provision that “purports to delete the
International Union, UAW, from the Recognition Clause,” rejected the proposed collective-
bargaining agreement and directed that the officers and committee of Local 718 join with “the
Director of Region 4 and the International Representatives(s)” and return promptly to the
bargaining table, in order to secure a better Agreement.”
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The foregoing resolution was sent to Niemuth by Attorney Stanley Eisenstein, who
represented the Union and who had filed the charge herein on March 10. Niemuth did not
attempt to contact either Attorney Eisenstein or International Representative Anclam. In
explaining his failure to do so, Niemuth testified that he thought that the most effective way “to
try and get that issue resolved was to work with Rick [Kardell] because I hadn't had much
success in getting issues resolved with Roger [Anclam].”
On the evening of March 12, Local 718 President Rick Kardell was attending a birthday
party for his son. Niemuth and Lundstrom, having received the resolution from the International,
called him on his cellular telephone and informed him that there was a problem, the
International had rejected the contract. Kardell initially testified that he asked what would
happen if he signed the contract and the International did not and that Niemuth replied that “we
would go back to work.” Thereafter he acknowledged that Niemuth gave a more ambivalent
answer, stating that the Company was “inclined” to “move forward” with the agreement but that
his response was not “a definite answer.” Kardell asked what would happen if he, President of
Local Union No 718, did not sign. Niemuth stated that “the lockout would continue.” Niemuth did
not deny making that statement, and I credit it.
I do not credit the testimony of Niemuth or Human Resources Manager Lundstrom that
Kardell, in the telephone conversation initiated by Niemuth on March 12, stated that Anclam had
told him to go ahead and sign the agreement. Anclam denied giving any such instruction, that
he told Kardell that, if he wanted to sign, “that was up to him.” Although the Company, in its
brief, refers to the International’s alleged “acquiescence” in Kardell’s signing, Kardell acted only
on behalf of Local 718. The International’s resolution, of which the Company was aware,
rejected the contract that eliminated it as a party. There was no acquiescence.
Both Local 718 President Kardell and Human Resources Manager Lundstrom testified
that they did not “fully understand” the conversations between Anclam and Niemuth regarding
the omission of the “and its” language. Notwithstanding Kardell’s lack of understanding, it
appears that he communicated some concern regarding the status of the International to
Niemuth because, on March 13, Niemuth sent Kardell an email assuring him the International
would “continue to have a role in representing … employees,” that “[a]lthough not mentioned in
the Agreement,” International representatives could represent employees at arbitrations. There
is no testimony regarding the reason for the foregoing assurance. The email was placed into
evidence through Human Resources Manager Lundstrom who simply identified it. Niemuth was
not asked about it. Kardell was not recalled to address it. In addition to the assurance regarding
representation at arbitrations, the email notes that the collective-bargaining agreement, Article
6.5, provides that, “with prior approval of the Human Resources Manager, International Union
representatives may enter Company property for important reasons involving the administration
of the Agreement.” The email does not quote the complete provision which, by its terms, also
requires prior approval for entry to attend Step 2 grievance meetings: “With prior approval of the
Human Resources Manager, International Union representatives may enter Company property
to attend Step 2 grievance meetings or for other important reasons involving the administration
of this Agreement.” [Emphasis added.] The email does not note that the prior agreement, Article
8.3 B, provided: “International representative(s) of the Union shall be granted permission to visit
the Plant for the purpose of investigation of grievances or other Union business that concerns
Local 718.” [Emphasis added.]
On March 14, Kardell and Lundstrom signed the collective-bargaining agreement which,
by the terms that the Company had not altered, stated that it was between the Company and
“International Union, United Automobile, Aerospace, and Agricultural Implement Workers of
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America, Local No. 718.”
On April 3, Niemuth wrote Anclam asking whether the International “continues to have
an issue with the new Agreement” and, that, if it did, offering to “meet and discuss the issue
further.” There was no offer to amend the collective-bargaining agreement by restoring the
historical recognition language. On April 14, Anclam wrote Niemuth, pointing out that the
International had filed an unfair labor practice charge on March 10, the charge herein, and that
he had protested the elimination of the International at the bargaining table. Although not
specifically pointing out that Niemuth had not contacted him following his March 7 letter or the
March 11 resolution of the International, he describes Niemuth’s letter of April 3 as “belated.”
C. Credibility
Attorney Niemuth claimed that it was not the Company’s intent to change the identity of
the collective bargaining representative. I do not credit that testimony. It is undisputed that there
are various inconsistent references to the Union in the prior agreement, including the language
of the 2005 Memorandum of Settlement which states that it was between the Company and
Local 718. The assertion of Attorney Niemuth that he simply sought to make the language in the
collective-bargaining agreement consistent, notwithstanding the historical language in the
recognition clause, defies belief. When Niemuth was asked whether he viewed there to be any
“legal significance between the Union being described as the International Union and its Local
718 and International Union UAW Local 718, between those two things?” He answered, “Within
the context, no.” Nevertheless, despite his asserted belief in the absence of any legal
significance, “[w]ithin the context,” to the omission of the words “and its,” he refused to reinsert
them when the Union protested their omission.
If, as Attorney Niemuth testified, his purpose was to make editorial changes to achieve
consistency, there would have been no reason to refuse to reinsert the language of the prior
collective-bargaining agreement that states that the agreement is between the International and
"its Local Union No. 718.” When asked why the Company refused to do so, Niemuth, as on
various other occasions, did not specifically respond but gave a narrative answer, concluding
with his claim that the Respondent was “looking for the identification of the … sole exclusive
bargaining representative.” [Emphasis added.] The foregoing assertion regarding identifying the
“sole exclusive bargaining representative” contradicts his claim that it was not his intent to
change the identity of the collective bargaining representative. The collective bargaining
representative, as established by the recognition language to which the parties had agreed for
over the past 50 plus years was “the Union,” a joint representative consisting of the International
“and its Local Union No. 718.” [Emphasis added.]
Attorney Niemuth’s claim that “[w]e decided” that International Representative Anclam
was not the chief spokesperson for the Union is similarly incredible. Niemuth never stated the
identity of the “we” to whom he referred. He never asserted to either Anclam or Kardell that
Anclam no longer spoke as chief spokesperson. When explaining why he did not contact
Anclam following Anclam’s direct communication of March 7, or upon his receipt of the March
11 resolution of the International on March 12, Niemuth answered that he did not contact him
because he “thought the most effective [way] to try and get that issue resolved was to work with
Rick [Kardell] because I hadn't had much success in getting issues resolved with Roger
[Anclam].” Niemuth’s stated rationale for not contacting Anclam contained no assertion or
contention that he did not consider or believe that Anclam was the chief spokesperson on behalf
of the Union or that Anclam had somehow relinquished his role as chief spokesperson. It also
made no contention that Kardell had any authority to speak on behalf of the International, a fact
that Niemuth upon cross examination did not deny. When asked whether Kardell had “the
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authority to resolve the issue” of the deleted “and its” language, Niemuth evasively responded
that he “wasn't thinking in terms of authority. I was thinking in terms of getting it resolved.” The
foregoing testimony suggests no belief that Anclam had ceased to be the chief spokesperson. It
does reflect that Niemuth was unwilling to deal directly with chief spokesperson Anclam who
was insisting upon restoration of the “and its” language, thereby restoring the International as a
party to the contract and recognized joint representative of the unit employees.
D. Analysis and Concluding Findings
1. The Collective-Bargaining Agreement
The complaint alleges that the Respondent failed and refused to bargain with the joint
exclusive bargaining representative of employees in the unit, signed a collective-bargaining
agreement with only Local 718 notwithstanding that Local 718 was not the exclusive collective
bargaining representative of the employees in the unit, and, since that date has recognized and
bargained only with Local 718 in violation of Section 8(a) (1), (2) and (5) of the Act.
As succinctly stated by Counsel for the General Counsel in her opening statement, the
violations in this case are the elimination of the International as a party to the collective-
bargaining agreement, the signing of a collective-bargaining agreement on March 14th with only
Local 718, and conditioning the end of the lockout upon the local signing that agreement.
Gunite and the Union had previously enjoyed a productive bargaining relationship for
over 50 years, a period in which, so far as any of the participants in this hearing knew, no unfair
labor practice charges had been filed. Whether the Respondent, by introducing the
Memorandum of Settlement in 2005, acted innocently or sought to disrupt the bargaining
relationship by inserting wording that it could thereafter seek to exploit in order to remove the
International as a party to the contract is immaterial. As correctly noted in the brief of Counsel
for the General Counsel, the Respondent’s intent is immaterial. What is material is that, in
negotiations for the successor agreement in 2007 and 2008, the Company, purportedly to
achieve consistency, removed the International as a party to the collective-bargaining
agreement. The International did not acquiesce to its removal. Niemuth’s assertion that the
Respondent was not seeking to change the identity of the collective bargaining representative is
belied by his refusal to reinsert the historical recognition language.
Anclam pointed out to Niemuth that the collective-bargaining agreement was “a three
party agreement—the International, the Company, and its [the International’s] Local.” Niemuth
did not respond directly to the three party agreement comment but noted that there was no joint
certification and that if “the Union party” wanted the agreement to be between the Company and
the International that he “didn’t have any issue with that.” Niemuth, an experienced labor
relations attorney, did not acknowledge to Anclam that multiple decisions of the Board refer to
three party agreements. In Standard Motor Products, 331 NLRB 1466, 1479 (2000), the Union
“reminded the Company that it was three-party agreement (i.e. the local and the International
are joint representatives) and the Respondent had an obligation to sit down with the [local]
committee and the International.” In General Transformer Co., 173 NLRB 360 (1968), the
administrative law judge pointed out that the proceeding involved three parties, “an International
Union certified by the Board … an Employer who has … bargained side by side with that
International and its Local subsidiary, … and, finally, the International’s subsidiary Local …
which has participated in collective bargaining with the Employer side by side with its parent
International Union.” Id at 377.
Niemuth claimed that he sought to identify the "sole exclusive bargaining
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representative,” a quest that was bound to fail because all previous collective-bargaining
agreements established that the exclusive collective bargaining representative was a joint
representative, the International “and its Local Union No. 718.”
The Respondent, in its brief, asserts that the Respondent’s "numerous proposals all
describe the Union party the same and that description did not exclude the International.” I
disagree. After International Representative Anclam raised the issue of the omission of the “and
its Local 718” language, the Respondent offered to alter the language of the collective-
bargaining agreement so that the International would be the recognized collective bargaining
representative. The foregoing response effectively acknowledged that its proposed language did
eliminate the International as a party to the contract. Thus, contrary the argument of the
Respondent, Attorney Niemuth’s editing for “consistency” did “exclude the International,” and he
knew it. His claim that that there was no legal significance to the change in wording “[w]ithin the
context” is belied by his unwillingness to reinsert the “and its” language into the recognition
clause. The Respondent’s offer to rewrite the contract to recognize the International rather than
Local 718 confirmed the elimination of the International and presented the Union with an
unlawful and unacceptable alternative insofar as the Respondent had, for over half a century,
recognized the International “and its Local 718” as the joint exclusive collective bargaining
representative of its unit employees.
The Respondent’s historical recognition of the International and its Local 718, as
established by multiple contracts signed by the International and Local 718 established the joint
representative of the employees in the appropriate unit. See International Paper, 325 NLRB
689, 691 (1998). Board precedent cited by the General Counsel holds that the signing of an
agreement with only one of the parties when there is joint representation violates the Act. See
CBS Broadcasting Inc., 343 NLRB 871 (2004); General Transformer Co., supra.
If the Respondent, for consistency or otherwise, genuinely believed that the collective
bargaining representative was only Local 718, it could not, in good faith, offer to enter into a
collective-bargaining agreement with only the International, giving administrative responsibilities
to Local 718. If the Respondent believed that the collective bargaining representative was only
the International, it could not, in good faith, sign a collective-bargaining agreement with only
Local 718. Either option was unacceptable to the Union, neither option was agreed upon, and
both options constituted an unlawful change in the identity of the recognized joint exclusive
collective bargaining representative.
The Respondent, by refusing to recognize the International Union as joint representative
with its Local 718, violated Section 8(a)(1) and (5) of the Act. The Respondent, by entering into
a collective bargaining agreement with only Local 718, an entity that was not the exclusive
collective bargaining representative of employees in the unit, rendered unlawful assistance to a
labor organization in violation of Section 8(a)(1) and (2) of the Act.
2. The Lockout
The complaint alleges that the lockout, initiated on November 18, 2007, was converted
to an illegal lookout on March 12 when the Respondent conditioned the end of the lockout on
Local 718 signing a collective-bargaining agreement as the exclusive collective bargaining
representative of employees in the unit notwithstanding that Local 718 was not the exclusive
collective bargaining representative of the employees in the unit.
The General Counsel’s theory of the case is both succinct and correct. The Charging
Party contends that the Respondent violated the Act by refusing to withdraw its proposed
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language which eliminated the International as a party to the contract, a permissive subject of
bargaining, and that the refusal, on March 5, converted the lawful lockout to an unlawful lockout
on that date. I agree that the identification of the collective bargaining representative is a
permissive subject of bargaining. See N.L.R.B. v. Borg-Warner Corp., 356 U.S. 342 (1958).
However, the parties did not litigate the issue of insistence to impasse upon a permissive
subject of bargaining. There is no evidence that impasse was ever mentioned at the bargaining
table. The offer that the members of the unit ratified on March 9 was never, so far as this record
shows, presented as a final offer. There was no conversation on March 5 or 6 with regard to
impasse. On March 6, when International Representative Anclam again stated the
International’s opposition to the omission of the “and its” language, he stated that “[w]e won’t
decide it here.” The complaint alleges that the lockout was converted on March 12, thus the
Respondent was not on notice that it needed to address the issue of conversion of the lockout
to an unlawful lockout prior to that date. Thus, I deny the Charging Party’s request that I find that
the lockout became unlawful on March 5.
On March 12, Niemuth informed Kardell that the International had rejected the contract.
Kardell asked Niemuth what would happen if he, on behalf of Local 718, did not sign the
contract, Niemuth replied that “the lockout would continue.” When Kardell asked what would
occur if he signed and the International did not, Niemuth replied that the Company was
“inclined” to “move forward” with the agreement but that his response was not “a definite
answer.” The foregoing ambivalent response did not alter the situation. The lockout would not
end if Kardell did not sign the agreement that deleted a recognized party from the agreement.
It appears that, thereafter, Kardell expressed concerns which Niemuth addressed in his
email of March 13. Neither testified regarding the email. The email states that “[a]lthough not
mentioned in the Agreement,” International representatives would “continue to have a role in
representing … employees.” The email does not refer to recognition but to a “role” for the
International. The content of the email suggests that Kardell had expressed concerns regarding
only Local 718 signing the agreement. The email response appears to seek to dispel those
concerns and assure his signature insofar as “the lockout would continue” if he did not sign.
The Respondent argues that Local 718 and the Respondent were legally obligated to
sign the ratified agreement. I disagree. The agreement was not a legal agreement in that it had
deleted recognition of the International. There is no question that Niemuth agreed with Anclam
that the International had been eliminated as a bargaining representative insofar as he twice
offered to rewrite the agreement to provide for recognition of the International with Local 718
administering the agreement.
Conditioning the termination of a lawful lockout upon a party agreeing to an unlawful
condition converts the formerly lawful lockout into an unlawful lockout. Niemuth’s undenied
comment that if Local 718 President Kardell did not sign the agreement “the lockout would
continue” predicated the end of the lockout upon Local 718 signing the collective-bargaining
agreement which eliminated the International as joint exclusive collective bargaining
representative of the unit employees. Imposing an unlawful condition, thereby requiring “the
employees to accept the Respondent’s unlawful conduct” in order to end the lockout, renders
the lockout unlawful. See Allen Storage & Moving Co., 342 NLRB 501 (2004), citing Teamsters
Local 639 v. NLRB, 924 F.2d 1078, 1085 (D.C. Cir. 1991). The foregoing unlawful condition was
imposed on March 12 and converted the former lawful lockout to an unlawful lockout on that
date. Conditioning the end of the lockout upon the unlawful demand that Local 718 sign the
collective-bargaining agreement that eliminated the International as joint exclusive collective
bargaining representative of the unit employees violated Section 8(a)(1) and (3) of the Act.
JD(ATL)–20–09
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Conclusions of Law
1. By failing and refusing to bargain collectively in good faith with International Union,
United Automobile, Aerospace, and Agricultural Implement Workers of America and its Local
Union No. 718 as the joint exclusive collective bargaining representative of the employees in the
appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
2. By entering into a collective-bargaining agreement with an entity that is not the
recognized collective bargaining representative of the employees in the appropriate unit, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (2) and Section 2(6) and (7) of the Act.
3. By conditioning the termination of its lockout of employees upon the signing of a
collective-bargaining agreement by an entity that is not the recognized collective bargaining
representative of the employees in the appropriate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the Act.
Remedy
Having failed and refused to bargain collectively in good faith with International Union,
United Automobile, Aerospace, and Agricultural Implement Workers of America and its Local
Union No. 718, the Respondent must, upon request, recognize and bargain with the
International Union and its Local Union No. 718 as the joint exclusive collective bargaining
representative of the employees in the appropriate unit and, if an understanding is reached,
embody that understanding in a signed agreement.
Having entered into a collective-bargaining agreement with an entity that is not the
recognized collective bargaining representative of the employees in the appropriate unit, the
Respondent must, only upon request of the joint exclusive collective bargaining representative,
rescind any terms and conditions of employment implemented under that unlawful agreement.
Having found that the Respondent, on March 12, 2008, illegally locked out its
employees, it must make all employees whole for any loss of earnings or other benefits suffered
as a result of the lockout plus interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).3 In view of the Board’s decision in Glen Rock Ham, 352 NLRB 516 at fn. 1
(2008), I deny the request of the General Counsel for the award of compound interest.
The Respondent must also post an appropriate notice.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4

3 The lockout ended on March 17, 2008. It is undisputed that the plant operated on March 13
and 14. Counsel dispute whether the plant operated on March 15 and 16. I shall leave for
compliance the determination of the dates that the plant operated and the backpay obligation
thereby incurred.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Continued
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ORDER
The Respondent, Gunite Corporation, Rockford, Illinois, its officers, agents, successors,
and assigns, shall
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in good faith with International Union,
United Automobile, Aerospace, and Agricultural Implement Workers of America and its Local
Union No. 718 as the joint exclusive collective bargaining representative of the employees in
following appropriate unit:
All production and maintenance employees employed by the Employer at its Rockford,
Illinois, facility; EXCLUDING production clerks, shipping clerks, security guards, office
and clerical employees in the main office, engineers, drafting personnel, the nurses,
time-study, the research metallurgist, timekeepers, the production manager, the
superintendents, supervisors, assistant supervisors and any and all other supervisory
employees having authority to hire. transfer, suspend, lay off, recall, promote, discharge,
assign, reward or discipline other employees or otherwise effect changes in the status of
employees, or responsibly to direct them, or effectively recommend such action.
(b) Entering into a collective-bargaining agreement with an entity that is not the
recognized collective bargaining representative of the employees in the appropriate unit.
(c) Conditioning the termination of its lockout of employees upon the signing of a
collective-bargaining agreement by an entity that is not the recognized collective bargaining
representative of the employees in the appropriate unit.
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the International Union and its Local Union
No. 718 as the joint exclusive collective bargaining representative of the employees in the
appropriate unit and, if an understanding is reached, embody that understanding in a signed
agreement.
(b) Only upon request of the joint exclusive bargaining representative, rescind any terms
and conditions of employment implemented under the agreement with an entity that is not the
recognized collective bargaining representative of the employees in the appropriate unit.
(c) Make whole all employees for any loss of earnings or other benefits suffered as a
result of the lockout after March 12, 2008, in the manner set forth in the remedy section of the
decision.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
_________________________
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
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Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Subregion, post at its facility in Rockford, Illinois,
copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by
the Regional Director for Subregion 33, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
March 12, 2008.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., August 20, 2009.
_____________________
George Carson II
Administrative Law Judge

5 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall
read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(ATL)–20–09
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail and refuse to bargain collectively in good faith with International Union,
United Automobile, Aerospace, and Agricultural Implement Workers of America and its Local
Union No. 718 as the joint exclusive collective bargaining representative of you who are in the
following appropriate unit:
All production and maintenance employees employed by the Employer at its Rockford,
Illinois, facility; EXCLUDING production clerks, shipping clerks, security guards, office
and clerical employees in the main office, engineers, drafting personnel, the nurses,
time-study, the research metallurgist, timekeepers, the production manager, the
superintendents, supervisors, assistant supervisors and any and all other supervisory
employees having authority to hire. transfer, suspend, lay off, recall, promote, discharge,
assign, reward or discipline other employees or otherwise effect changes in the status of
employees, or responsibly to direct them, or effectively recommend such action.
WE WILL NOT enter into a collective-bargaining agreement with an entity that is not your
recognized collective bargaining representative.
WE WILL NOT condition the termination of our lockout upon the signing of a collective-
bargaining agreement by an entity that is not your recognized collective bargaining
representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the International Union and its Local Union
No. 718 as your joint exclusive collective bargaining representative of the employees and, if an
understanding is reached, embody that understanding in a signed agreement.
WE WILL, only upon the request of your joint exclusive collective bargaining representative,
rescind any terms and conditions of employment implemented under the agreement with an
entity that is not your recognized collective bargaining representative.
JD(ATL)–20–09
WE WILL make whole all employees for any loss of earnings or other benefits suffered as a
result of the lockout after March 12, 2008, in the manner set forth in the remedy section of the
decision.
GUNITE CORPORATION
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
300 Hamilton Boulevard, Suite 200, Peoria, IL 61602-1246
(309) 671–7080, Hours: 8:30 a.m. to 5:00 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (309) 671-7085